Bía Terms of Use — Bía Smart Sleep Mask

The following terms of use (“Terms of Use”) govern your access to and use of: (a) our website including any content, functionality, offered on or through https://getbia.com/ (the “Website”); (b) any mobile device software provided by us to you, including our mobile application for iPhone and Android (the “Bía Sleep App”), (c) the software included on the Bía sleep wearable mask (“Bía Sleep Mask”), (d) any text, pictures, media, data, text, information and other materials or content (collectively, the “Content”) contained on or provided through (a) and (b); and (e) all other Content, products or services provided by us to you through the Website or the Bía Sleep App (collectively, the “Bía Solution”).

These Terms of Use form an agreement between Bía Neuroscience Inc. (“Bía”, “us”, “we”, “our”) and you. The term “you” or “User” refers to the person or entity browsing, installing, downloading, accessing or otherwise using the Bía Solution (“use” or “using” in these Terms of Use will mean any of the foregoing).

BY USING THE BÍA SOLUTION IN ANY WAY, BUYING ANY PRODUCTS OR SERVICES, OR BY CLICKING TO ACCEPT THE TERMS AND CONDITIONS, YOU:

A. REPRESENT AND WARRANT THAT:

I. YOU HAVE REACHED THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION;

II. YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS

B. AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE AND PRIVACY POLICY AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 1.

IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MUST NOT ACCESS OR USE THE BÍA SOLUTION.

Changes to these Terms of Use and the Bía Solution
1. Except where prohibited by applicable law, we reserve the right, in our sole discretion, to change any element of these Terms of Use at any time. When we change these Terms of Use, we will: (i) place a notice on the Website and may send you an email or notify you by some other means as required by applicable law; (ii) post a new version to the Website; and (iii) update the “Last Updated” date at the top of these Terms of Use. We may require you to provide consent to the updated Terms of Use in a specified manner before further use of the Bía Solution is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using the Bía Solution. Otherwise, your continued access to or use of the Bía Solution after any changes to these Terms of Use indicates your acceptance of such changes.
2. We reserve the right to change the Bía Solution at any time, without notice. We may, at our discretion, suspend your access to or use of the Bía Solution or any component thereof: (i) for scheduled maintenance; (ii) if you violate any provision of these Terms of Use; or (iii) to address any emergency security concerns. We will not be liable if, for any reason, all or any part of the Bía Solution is restricted to users or unavailable at any time or for any period.
User Account
1. To access certain features of the Bía Solution, you may be required to successfully sign up for a user account using the available interfaces of the services, and select a username and password login credentials (the “User ID”).
2. If you select a User ID, you will keep your User ID secure and will not grant access to or otherwise share your User ID with any other person.
3. You must provide us with true, accurate, current and complete information for your User ID. If we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Bía Solution.
4. We reserve the right to disable any User ID issued to you at any time in our sole discretion. If we disable access to a User ID issued to you, you may be prevented from accessing the Bía Solution (or any portion thereof).
5. Bía is entitled to act on instructions received through your account. Bía is not responsible for any actions taken or transactions made to or from your account by any other party using your User ID. You are solely responsible for any and all use of your User ID and all orders and activities that occur under or in connection with the User ID. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as we deem necessary or reasonable, to ensure the security of the Bía Solution and your account, including without limitation terminating your account, changing your password, and requesting additional information to authorize transactions on your account. You agree to be responsible for any act or omission of any users that access the Bía Solution under your User ID that, if undertaken by you, would be deemed a violation of these Terms of Use. You agree to notify us immediately of any unauthorized access to or use of your User ID or any other breach of security.
Updates to the Bía Solution.
1. You acknowledge, understand and agree that the Bía Solution is still under development by Bía, is not fully tested, may contain bugs or errors, and will have limited functionality. Bía may make an update to, fix, or patch the Bía Solution at any time without notice. Bía makes no warranty or representation with respect to maintenance, correction, or other support of the Bía Solution.
Electronic Communications
1. When you use or view the Bía Solution or send e-mails or other electronic messages to us, you are communicating with us electronically and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Bía Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
2. By creating an account to access the Bía Solution, you acknowledge and agree that Bía will send you service-related e-mails relating to your account, including service updates. These communications can be managed through user features made available through the Bía Solution from time to time. Your consent to receive communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. You may withdraw your consent to receive communications electronically by contacting us in the manner described below. If you withdraw your consent (excluding consent to receive marketing communications), from that time forward, you must stop using the Bía Solution. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all communications without interruption.
3. If you are a member of our mailing list you will also receive email communications from us regarding our products, services, promotions and initiatives. If you do not wish to receive these communications, you can unsubscribe from such promotional e-mails at any time by clicking on the unsubscribe link in any of our e-mail communications.
User Data
1. You grant to us and our licensees, successors and assigns, an irrevocable, worldwide, non-exclusive, royalty-free, transferable and sublicensable licence to access, collect, store and use any data, information, records or files that you load, transmit to or enter into, or that we collect from, the Bía Solution (collectively, “User Data”): (i) to develop, enhance and make available the Bía Solution; and (ii) to produce data, information, or other materials that are not identifiable as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
2. We and our licensees, successors and assigns are free to create, use and disclose Aggregated Data during and after the Term for any purpose and without obligations of any kind. Aggregated Data is not User Data and is not your Personal Information.
3. The privacy policy found at https://getbia.com/policies/privacy-policy (“Privacy Policy”) is incorporated into these Terms of Use, and contains important information about our practices in collecting, storing, using and disclosing information about identifiable individuals (“Personal Information”). Your consent and agreement to these Terms of Use includes consent and agreement to the Privacy Policy.
Payment
1. To pay for an order, you will need to provide Bía or, if applicable, a third-party payment processor (the “Payment Processor”) with the information necessary to process a payment from you, including the billing information requested on the Bía Solution or the applicable Payment Processor’s platform. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor, if any, in addition to these Terms of Use. We are not responsible for any error by, or other acts or omissions of, any Payment Processor. You may pay for your order via credit card or any other manner then available on the Bía Solution or applicable Payment Processor’s platform. By submitting your payment information to us or the Payment Processor, you authorize us or the Payment Processor to charge the applicable payment method at our or their convenience (but within thirty (30) days of credit card authorization). You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We assume that because orders require a valid credit card and the Bía Sleep Mask should only be used by persons over 19, only persons age 19 or over are placing orders, and providing us or the Payment Processor with the information requested during the order process. We and any Payment Processor are not liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Bía Solution or the Payment Processor’s platform (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however you may report any unauthorized use to us or the Payment Processor, and we and/or the Payment Processor will use reasonable measures within our control to help prevent future unauthorized use of your card. We reserve the right to correct any errors or mistakes that any Payment Processor makes even if it has already requested or received payment.
2. The terms of your payment will be based on your chosen payment provider and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen payment method. If we, either through the Payment Processor or otherwise, do not receive payment from you, you agree to pay all amounts due on your billing account upon demand.
License to the Bía Solution and Ownership
1. Neither these Terms of Use nor your use of the Bía Solution grants you ownership in the Bía Solution or the Content you access through the Bía Solution. These Terms of Use do not grant you any right to use Bía’s trademarks or other brand elements. All right, title and interest, including intellectual property rights, in the Bía Solution, the source code in the software we use to provide the Bía Solution (the “Software”), and all other materials provided by us hereunder, and any updates, adaptation, translation, customization or derivative works thereof, will remain the sole property of Bía or our third-party suppliers, if applicable.
2. The Software and all other materials provided by us hereunder, including Content we make available through or in the Bía Solution, are protected by copyright in Canada, the United States and elsewhere in the world pursuant to the Berne Convention. You are prohibited from modifying, copying, reproducing, publishing, posting, transmitting, distributing, creating derivative works from, decompiling, transferring or selling any of the Bía Solution, the Software or other materials provided by us hereunder, or sharing or granting access in any of the foregoing to any third party for any purpose. You agree not to adjust or to try to circumvent or delete any copyright, trademark, or other intellectual property notices contained on the Bía Solution or in the Content and in particular, in any digital rights or other security technology embedded or contained within any Content. You agree not to remove any watermarks, labels or other legal or proprietary notices included in the Bía Solution or the Content.
3. Any use of third-party software provided in connection with the Bía Solution will be governed by such third parties’ licenses and not by these Terms of Use.
4. The Bía Solution and all materials provided by us hereunder are made available or licensed and are not “sold” to you.
5. Any trademarks, logos, product and service names, designs, images and slogans appearing in or on the Bía Solution are the exclusive property of Bía (or its third-party suppliers) and may not be used in any manner without our express written consent.
6. All rights not expressly granted to you in these Terms of Use are reserved by Bía.
7. Subject to these Terms of Use, we grant you a worldwide, non-exclusive, non-transferable, non-sublicensable and revocable licence during the Term to use the Bía Solution, including to download and display local Content solely in connection with using the Bía Solution, in accordance with these Terms of Use.
Your Responsibilities
1. You acknowledge and agree that the Bía Solution has not been represented to you as and is NOT to be used by you as a source of medical or healthcare advice. The Bía Solution is NOT for use diagnosing, treating, mitigating or preventing of a disease, disorder or abnormal physical state, or any of their symptoms and is NOT for use restoring, modifying or correcting your body structure or the functioning of any part of your body; and
2. you agree to:
  1. use reasonable efforts to prevent unauthorized access to or use of the Bía Solution;
  2. keep your User IDs and all other login information confidential;
  3. not register for more than one account, register for an account on behalf of an individual other than yourself without such individual’s authorization;
  4. monitor and control all activity conducted through your account in connection with the Bía Solution;
  5. keep your email address and, where applicable, your contact details associated with your account current and accurate;
  6. promptly notify us if you become aware or reasonably suspect any illegal or unauthorized activity or a security breach involving your account, including any loss, theft, or unauthorized disclosure or use of a User ID or account;
  7. not use anyone else’s User ID at any time, without the permission of the User ID holder; and
  8. comply with all applicable laws and regulations, including, but not limited to, all intellectual property, data, and privacy laws.
No Unlawful or Prohibited Use
1. You will not use the Bía Solution in violation of these Terms of Use or of any applicable law. You will not, without our prior written permission, use the Bía Solution for any purpose other than to access and use the Bía Solution. Without limiting the generality of the foregoing, you will not (and will not attempt to) directly or indirectly:
  1. disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Bía Solution (e.g., a denial of service attack);
  2. attempt to gain unauthorized access to the Bía Solution, or bypass any measures we may use to prevent or restrict access to the Bía Solution;
  3. send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Bía Solution any data, information, pictures, videos, audio or other materials or content that: (i) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) you do not have the lawful right to send, upload, collect, transmit, store, use, post, publish, or otherwise communicate; (iii) is false, inaccurate, intentionally misleading, or impersonates any other person; (iv) gives the impression that it originates from or is endorsed by us or any other person or entity, if that is not the case; (v) is defamatory, bullying, harassing, abusive, threatening, vulgar, exploitative, obscene, harmful, sexually explicit, inflammatory, offensive or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such legally prohibited ground, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable, such determination to be made in Bía’s sole discretion; (vi) is harmful to minors in any way or targeted at minors; (vii) infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (viii) violates, or encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability; or (ix) contains information about an identifiable individual;
  4. use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the Bía Solution or any part thereof or otherwise attempt to discover any source code; use the Bía Solution for the purpose of building a similar or competitive product or service;
  5. in any manner violate the terms of use of any third party website that is linked to the Bía Solution;
  6. impersonate or attempt to impersonate Bía, a Bía employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing);
  7. encourage any other conduct that restricts or inhibits anyone’s use or enjoyment of the Bía Solution, or which, as determined by us, may harm Bía or users of the Bía Solution or expose them to liability;
  8. promote any illegal activity or advocate, promote, or assist any unlawful act;
  9. publish, market, advertise or in any way distribute the Content;
  10. access or use the Bía Solution for the purpose of building a similar or competitive product or service;
  11. copy or store any significant portion of the Content;
  12. share, transfer or otherwise provide access to an account designated for you to another person;
  13. mirror or frame the Website or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages; or
  14. authorize, permit, enable, induce or encourage any third party to do any of the above.
Feedback
1. You agree that any suggestion or idea provided by you (such suggestions or ideas, “Feedback”) will not be treated as confidential, and nothing in these Terms of Use will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to you and without any obligation to you. You grant to us and our licensees, successors, and assigns, a fully paid up, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, translate, distribute, publicly perform, publicly display, import, sell, offer for sale, make, have made, derive revenue or other remuneration from, and otherwise exploit and disclose to third parties the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Bía Solution or through any other method of communication with us, unless we have entered into a separate agreement with you that provides otherwise. You will not have any claim, including, without limitation, claims based upon invasion of privacy, defamation or right of publicity, arising out of any use, alteration, blurring, distortion or use in composite form of any Feedback. Except as prohibited by law, you hereby waive, and you agree to waive, any moral and author’s rights (including attribution and integrity) that you may have in any Feedback, even if it is altered or changed in a manner not agreeable to you.
Third Party Content, Websites or Services
1. The Bía Solution may provide or publish links or access to third party content, websites, or services. Likewise, we may allow you to access the Bía Solution from third party systems. Bía does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with such third party content, websites, or services are the property of their respective owners. Bía does not endorse any third party content, websites, services, or systems, or guarantee or warrant their quality, durability, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third party content, websites, services, or systems are not under Bía’s control, and if you choose to access any such content, websites, or services, or to access the Bía Solution from such systems, you do so entirely at your own risk. You acknowledge that you may be required to accept terms of use applicable to third party content, websites, services, or systems and agree to accept and comply with any such terms of use.
2. Your interactions with organizations and/or individuals found on or through the Bía Solution, including payment and delivery of goods and services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You agree that to the fullest extent permitted by applicable law, Bía is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
Malicious Code and Security
1. The downloading and viewing of Content and the Bía Sleep App is done at your own risk. We do not guarantee or warrant that the Bía Solution is compatible with your computer system or mobile device or that the Bía Solution, or any links from the Bía Solution, will be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system and/or mobile device, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system and/or mobile device that may be necessary as a result of your use of the Bía Solution.
Disclaimer
1. THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS IN THESE TERMS OF USE (INCLUDING THE FOLLOWING DISCLAIMERS) MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR CONDITION, THE SCOPE AND DURATION OF SUCH WARRANTY OR CONDITION WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE BÍA SOLUTION AND ANY BÍA PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. BÍA DOES NOT WARRANT THAT THE BÍA SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BÍA SOLUTION. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED OR AS OTHERWISE REQUIRED BY LAW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE BÍA SOLUTION AND PRODUCTS AND SERVICES WHETHER EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, BÍA EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE BÍA SOLUTION (OR ANY PART OF THEM), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY YOU FOR ANY PURPOSE WHATSOEVER. BÍA WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, MAILBOMBING OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE, THE BÍA SLEEP APP OR THE CONTENT OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON ANY WEBSITE LINKED TO THEM.
3. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THIRD PARTY COMMUNICATIONS AND ANY THIRD PARTY WEBSITES OR CONTENT DIRECTLY OR INDIRECTLY ACCESSED THROUGH THE BÍA SOLUTION.
4. YOU ACKNOWLEDGE AND AGREE THAT THE BÍA SOLUTION DOES NOT CONSTITUTE MEDICAL ADVICE, AND IS NOT A REPLACEMENT FOR THE ADVICE OF A MEDICAL OR HEALTH CARE PROFESSIONAL. ACCORDINGLY, YOU ARE RESPONSIBLE FOR YOUR OWN HEALTH AND SAFETY AND YOU WILL EXERCISE YOUR OWN GOOD JUDGEMENT AND SEEK THE ADVICE OF A MEDICAL OR HEALTH CARE PROFESSIONAL AS APPROPRIATE IN YOUR CIRCUMSTANCES WHEN REVIEWING OR USING ANY INFORMATION MADE AVAILABLE TO YOU IN CONNECTION WITH THE BÍA SOLUTION.
5. IF YOU ARE A CONSUMER RESIDING IN QUÉBEC, THE FOREGOING DOES NOT LIBERATE US FROM THE CONSEQUENCES OF OUR OWN ACTS OR THOSE OF OUR REPRESENTATIVES.
Limitation of Liability
1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, LICENSEES AND SERVICE PROVIDERS AND ANY SUCCESSORS AND ASSIGNS OF THE FOREGOING (COLLECTIVELY WITH BÍA, THE “BÍA PARTIES”) BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY: (I) DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; (VI) PERSONAL OR PROPERTY DAMAGE; OR (VII) OTHER LIABILITIES, IN EACH CASE, WHETHER OR NOT WE WERE ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE BÍA SOLUTION OR THE INABILITY TO MAKE USE OF THE BÍA SOLUTION, OR THESE TERMS OF USE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE BÍA SOLUTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE BÍA SOLUTION.
2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THESE TERMS OF USE, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE BÍA SOLUTION, EXCEED THE AMOUNT YOU PAID FOR THE BÍA SOLUTION, IF ANY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
3. Without limiting the foregoing, under no circumstances will any of the Bía Parties be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our or their reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, pandemics, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
4. If you are a consumer residing in Québec, the foregoing does not liberate us from the consequences of our own acts or those of our representatives.
Indemnification
1. You will defend, indemnify and hold harmless the Bía Parties from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including reasonable legal and accounting fees, arising out of or in connection with:
  1. your User Data;
  2. your use of the Bía Solution or any services offered by Bía (except to the extent prohibited by law);
  3. your breach of any provision of these Terms of Use or any documents referenced herein;
  4. your violation of any law or the rights of a third party (including intellectual property rights); or
  5. any viruses, Trojan horses, worms, time bombs, spyware, malware, cancelbots or other similar harmful or deleterious programming routines input by you into the Bía Solution.
2. Bía reserves the right, at its own cost, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defences. You agree that the provisions in this section will survive any termination of your account, the Terms of Use or your access to the Bía Solution.
Term and Termination
1. These Terms of Use will commence on the day you first use any portion of the Bía Solution and will remain in effect until terminated by either party in accordance with the provisions of these Terms of Use (the “Term”). We may terminate these Terms of Use at any time and with immediate effect by giving notice to you, at our discretion, by email (at your current email address on file with us) or through the Bía Solution. You may terminate these Terms of Use at any time and with immediate effect by requesting by email that your User ID be deleted, or by deleting your account, ceasing use of the Bía Solution and uninstalling and deleting the Bía Sleep App. For greater certainty, if you continue to use any portion of the Bía Solution that is publicly available after these Terms of Use have been terminated, these Terms of Use will continue to apply to the extent of such use.
Survival
1. The following Sections, together with any other provision of these Terms of Use which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Use, will survive expiration or termination of these Terms of Use for any reason: Sections 5 (User Data and Privacy), 7 (License to the Bía Solution), 8 (Your Responsibilities), 9 (No Unlawful Use or Prohibited Use), 10 (Feedback), 11 (Third Party Content, Websites or Services) 12 (Malicious Code and Security), 13 (Disclaimer), 14 (Limitation of Liability), 15 (Indemnification), 17 (Survival), and 19 (General Provisions).
Contact
1. If you have any questions or comments regarding these Terms of Use, please contact us at:
  Andrew Jolie, Co-Founder
  +1-844-242-6275
  [email protected]
General Provisions
1. Choice of Law. Except as restricted by applicable law, these Terms of Use will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein without giving effect to any principles of conflicts of law and such laws apply to your access to or use of the Bía Solution, notwithstanding your domicile, residency or physical location. You will only use the Bía Solution in jurisdictions where the Bía Solution may lawfully be used. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Vancouver, British Columbia in all disputes arising out of or relating to the use of the Bía Solution. The U.N. Convention on Contracts for the International Sale of Goods will not apply to these Terms of Use. This choice of jurisdiction does not prevent us from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
2. Entire Agreement and Interpretation. These Terms of Use and all documents incorporated by reference herein constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Bía Solution, products, and any services offered by Bía. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The terms "include" and "including" mean, respectively, "include without limitation" and "including without limitation." The headings of sections of these Terms of Use are for reference purposes only and have no substantive effect. The terms "consent" or "discretion", when used in respect of us in these Terms of Use, mean our right to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain our decision to you.
3. Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provision or right. A waiver of any provision of these Terms of Use must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
4. Severability. If any of the provisions contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from these Terms of Use and all other provisions of these Terms of Use will remain in full force and effect.
5. Assignment. You will not assign these Terms of Use to any third party without our prior written consent. We may assign these Terms of Use or any rights under these Terms of Use to any third party without your consent. Any attempted assignment, subcontract, delegation, or transfer in violation of this Section will be null and void. These Terms of Use will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.
6. English Language. The parties confirm that the essential stipulations of these Terms of Use reflect the mutual agreement of the parties further to negotiation, and were not imposed by either party, even when drawn up by one of the parties. The parties further confirm that it is the express wish of all parties that these Terms of Use, all documents related to these Terms of Use and all communications between the parties in the context of the performance of these Terms of Use be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.
Access Through Bía App for iOS
1. If the Bía Sleep App is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) application store (the “Bía App for iOS”), the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Use in respect of your access to or use of the Bía Solution through the Bía App for iOS:
  1. the parties acknowledge these Terms of Use are concluded between Bía and you, and not with Apple and Apple is not responsible for the Bía Solution and content thereof is governed by these Terms of Use;
  2. notwithstanding anything to the contrary hereunder, you may use the Bía App for iOS only on an Apple device;
  3. the parties acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Bía Solution (including the Bía App for iOS);
  4. in the event of any failure of the Bía App for iOS to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Bía App for iOS (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Bía Solution (including the Bía App for iOS), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by these Terms of Use;
  5. any claim in connection with the Bía Solution related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by these Terms of Use, and Apple is not responsible for such claim;
  6. any third party claim that the Bía Solution or your possession and use of the Bía App for iOS infringes that third party’s intellectual property rights will be governed by these Terms of Use, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim;
  7. you represent and warrant that you are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties;
  8. you may contact Bía in writing regarding any notices, questions, complaints or claims with respect to the Bía Solution (including Bía App for iOS) through the contact information made available on the following webpage:https://getbia.com/contact-us; and
  9. Apple is a third party beneficiary to these Terms of Use and may enforce these Terms of Use against you.
Access Through Bía App for Android
1. If the Bía Sleep App is provided to you through the ‘Google Play’ application store made available by Google Inc. (Google Inc. together with all of its affiliates, “Google”, such application the “Bía App for Android”) the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Use in respect of your access to or use of the Bía Solution through the Bía App for Android:
  1. the parties acknowledge that these Terms of Use are concluded between Bía and you, and not with Google and Google is not responsible for the Bía Solution and content thereof is governed by these Terms of Use;
  2. the parties acknowledge that Google has no obligation to furnish any maintenance or support services with respect to the Bía Solution (including the Bía App for Android);
  3. to the maximum extent permitted by applicable laws, Google will have no warranty obligation whatsoever with respect to the Bía Solution (including the Bía App for Android), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by these Terms of Use;
  4. any claim in connection with the Bía Solution related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by these Terms of Use, and Google is not responsible for such claim;
  5. any third party claim that the Bía Solution or your possession and use of the Bía App for Android infringes that third party’s intellectual property rights will be governed by these Terms of Use, and Google will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim;
  6. you may contact Bía in writing regarding any notices, questions, complaints or claims with respect to the Bía Solution (including the Bía App for Android) through the contact information made available on the following webpage: https://getbia.com/contact-us; and
  7. Google is a third party beneficiary to these Terms of Use and may enforce these Terms of Use against you.